Citation Nr: 0414838
Decision Date: 06/09/04 Archive Date: 06/23/04
DOCKET NO. 02-20 311A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an initial evaluation in excess of 20 percent
for diabetes mellitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Darryl M. Springer, Law Clerk
INTRODUCTION
The veteran had active service from December 1965 to November
1967. The veteran served in Vietnam from November 1966 to
November 1967.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision by the Department of
Veterans Affairs (VA) Columbia, South Carolina Regional
Office (RO).
Because the veteran's appeal involves question as to the
propriety of the initial rating assigned following grant of
service connection for diabetes mellitus, the Board has
characterized the issue in accordance with Fenderson v. West,
12 Vet. App. 119, 126 (1999), as explained below.
FINDINGS OF FACT
1. All relevant available evidence necessary for an
equitable disposition of the appropriate claim addressed by
this decision has been obtained by the RO.
2. The veteran's diabetes mellitus has been treated with
insulin but it has not been shown to necessitate regulation
of the veteran's activities. Repeat hospitalizations or
health care treatment for hypoglycemic episodes have not been
shown.
CONCLUSION OF LAW
The criteria for an initial rating in excess of 20 percent
for diabetes mellitus, have not been met. 38 U.S.C.A. §§
1155, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-
4.7, 4.119, Diagnostic Code 7913 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A. Duties to Notify and Assist
At the outset, the Board is aware of the recent Court
decision in the case Pelegrini v. Principi, 17 Vet. App. 412
(2004). In this case it was essentially held that the notice
and assistance provisions of the Veterans Claims Assistance
Act of 2000 (VCAA) should be provided to a claimant prior to
any adjudication of the claim. In this case the veteran was
provided preadjudication notice. Furthermore, there is
additional and complete notice as discussed below. As such,
the Board can proceed.
As will be discussed below, the VCAA provisions have been
considered and complied with. There is no indication that
there is additional evidence to obtain, there is no
additional notice that should be provided, and there has been
a complete review of all the evidence without prejudice to
the appellant. As such, there is no indication that there is
any prejudice to the appellant by the order of the events in
this case. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Any error in the sequence of events is not shown to have any
effect on the case or to cause injury to the claimant. As
such, the Board concludes that any such error is harmless and
does not prohibit consideration of this matter on the merits.
See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir.
1998); Miles v. Mississippi Queen, 753 F.2d 1349, 1352 (5th
Cir. 1985).
In the present case, regarding the issues on appeal, there
was notice provided in November 2001 concerning information
needed to support the claim, and development was undertaken.
Thereafter, in a rating decision dated in April 2002 the
issue was granted.
Because the VCAA notice in this case was provided to the
claimant prior to the initial AOJ adjudication granting the
claim, the timing of the notice complies with the express
requirements of the law as found by the Court in Pelegrini.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error). Further, it appears that
he has essentially been told to submit all the evidence he
has, and there is no further evidence to be obtained. See
Pelegrini, supra.
Here, the Board finds that the content of the notice fully
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b). After the notice was provided, the
case was readjudicated and a statement of the case (SOC) was
provided to the claimant. See Quartuccio v. Principi, 16
Vet. App. 183, 187 (2002) (addressing the duties imposed by
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The
claimant has been provided with every opportunity to submit
evidence and argument in support of his claims, and to
respond to VA notices. Although the appellant was given 60
days to respond with the information, on December 16th, 2003,
the President signed H.R. 2297, Veterans Benefits Act of
2003, Pub. L. No. 108-183, 117 Stat. 2651 (Dec. 16, 2003),
which stated that "nothing shall be construed to establish a
duty on the part of the Secretary to identify or readjudicate
any claim that is not submitted during the one-year period
under 38 U.S.C.A. § 5103A or has been the subject of a timely
appeal to the Board of Veterans' Appeals or the United States
Court of Appeals for Veterans Claims." This change was
effective as of November 9, 2000.
Considering the record in light of the duties imposed by the
VCAA and its implementing regulations, the Board finds that
all notification and development action needed to fairly
adjudicate the issue on appeal in this decision, have been
accomplished. As this evidence provides a sufficient basis
upon which to evaluate the claims, VA's duty to assist has
been met. See 38 U.S.C.A. § 5103A.
B. Disability Ratings
Disability evaluations are determined by comparing a
veteran's present symptomatology with the criteria set forth
in VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. Part 4 (2003). When a question arises
as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2003). After careful consideration of the
evidence, any reasonable doubt is resolved in favor of the
veteran. 38 C.F.R. § 4.3 (2003).
The veteran's entire history is considered when making
disability evaluations. 38 C.F.R. § 4.1 (2003); Schafrath v.
Derwinski, 1 Vet. App. 589, 592 (1991). Where entitlement to
compensation already has been established and an increase in
the disability rating is at issue, it is the present level of
disability that is of primary concern. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). Where the question for
consideration is propriety of the initial evaluation
assigned, evaluation of the medical evidence since the grant
of service connection and consideration of the
appropriateness of "staged rating" is required. See
Fenderson v. West, 12 Vet. App. 119 (1999). As the issue in
this case involves a rating assigned in connection with a
grant of service connection, the Board will follow the
guidance of the Fenderson case in adjudicating the claim.
Under the criteria of Diagnostic Code 7913, a 10 percent
disability rating is appropriate where diabetes mellitus is
manageable by restricted diet only. A 20 percent rating is
appropriate for insulin and restricted diet, or oral
hypoglycemic agent and restricted diet. A 40 percent
disability rating is appropriate for insulin, restricted
diet, and regulation of activities. A 60 percent rating is
appropriate for insulin, restricted diet, and regulation of
activities with episodes of ketoacidosis or hypoglycemic
reactions requiring one or two hospitalizations per year or
twice a month visits to a diabetic care provider, plus
complications that would not be compensable if separately
evaluated. A 100 percent rating is appropriate for more than
one daily injection of insulin, restricted diet, and
regulation of activities (avoidance of strenuous occupational
and recreational activities) with episodes of ketoacidosis or
hypoglycemic reactions requiring at least three
hospitalizations per year or weekly visits to a diabetic care
provider, plus either progressive loss of weight and strength
or complications that would be compensable if separately
evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2003).
C. Factual background
Historically, a April 2002 rating decision granted service
connection with an evaluation of 20 percent. Disagreement
with the assigned rating has resulted in this appeal.
Private treatment reports from January 2000 to March 2001
show that the veteran was assessed with diabetes and diabetes
mellitus type II. A February 2001 report showed that the
veteran was taking insulin and that his blood sugars, which
usually ran around 110 had gone up to 170-200. The examiner
suggested modification of his Humalog sliding scale from 2-4-
6 units for blood sugars over 170, 6-10 units for blood
sugars over 200 and 8-12 units for blood sugars over 250 with
close monitoring and conformation that the veteran had fast
acting sugar to treat possible hypoglycemia.
Private cardiology reports from June 2000 to June 2001 show
that the veteran noted diabetes mellitus as one of his
problems. He was encouraged to maintain a healthy diet.
On VA examination of March 2002, the veteran reported that he
was diagnosed with diabetes mellitus 15 year ago. He
reported that he had never been hospitalized for it. He also
reported that initially he was treated with oral agents for
about two years and then switched to insulin. He reported
that he took 10 units of Humalog and 25 units of Humulin-N in
the morning, 7 units of Humalog at lunch, 15 units of Humalog
at supper and 3 units of Humalog at bedtime along with 13
units of Humulin-N. He reported that he had hypoglycemia
about twice weekly and that he had to go to the emergency
room about four to five years ago because of it. He reported
that ten years ago he had an episode that could have
represented hypoglycemia versus a transient ischemic attack
and he had no residuals. A Chem-7 revealed glucose of 257
with blood urea nitrogen of 20 and Creatine of 0.9.
Urinalysis revealed large glucose with no protein. The
microalbumin was 2.5. The diagnosis was diabetes mellitus,
treated with insulin but apparently not insulin dependent,
with complications of coronary heart disease. There was no
reference to any restriction of activities due to the
veteran's diabetes mellitus.
A private examiner's report of August 2002 reported that the
veteran had long standing insulin dependent diabetes since
1980. No restriction of activities was reported.
Private medical reports from October 2002 and November 2002
showed that the veteran reported a history of diabetes
mellitus. The November 2002 report showed that the veteran,
with respect to restrictions of daily living, was capable of
activities of daily living such as dressing and grooming
independently. He was also capable of performing light
household chores around the home.
A private examiner's report of July 2003 reported that the
veteran continued to work despite his multiple medical
conditions, which included diabetes originally diagnosed in
1983. The examiner also reported that the veteran had been
insulin dependent for 15 years. No restriction of activities
was described.
D. Analysis
Based on a review of the evidence, the Board finds that the
evidence does not support the veteran's contentions and that
an increased rating is warranted for his diabetes mellitus.
To reiterate, a 40 percent disability evaluation under
Diagnostic Code 7913 contemplates diabetes that requires
insulin, restricted diet, and regulation of activities. 38
C.F.R. §§ 4.3, 4.7, DC 7913. While the veteran treated his
diabetes mellitus with insulin, the evidence does not show
that he required any regulation of activities as contemplated
by a 40 percent rating. On the contrary, the evidence shows
that the veteran was capable of activities of daily living
and he was also capable of performing light household chores
around the home. In addition, a report from his private
examiner dated July 2003 reported that the veteran continued
to work despite his multiple medical conditions, which
included diabetes originally diagnosed in 1983.
Based on the discussion above, the Board finds that the
veteran's diabetes mellitus more nearly approximates the
rating criteria for a 20 percent evaluation than the higher
one of 40 percent. 38 C.F.R. §§ 4.119 Diagnostic Code 7913
(2003). Therefore, the evidence preponderates against the
granting of an evaluation in excess of 20 percent. The
evidence is not in equipoise so as to apply the benefit of
the doubt rule. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R.
§ 4.3 (2003).
Further review of the record does not reveal that the RO
expressly considered referral of the case to the Under
Secretary for Benefits or the Director, Compensation and
Pension Service for the assignment of an extraschedular
rating under 38 C.F.R. § 3.321(b)(1) (2003). This regulation
provides that, to accord justice in an exceptional case where
the schedular standards are found to be inadequate, the field
station is authorized to refer the case to the Under
Secretary for Benefits or the Director, Compensation and
Pension Service for assignment of an extraschedular
evaluation commensurate with the average earning capacity
impairment. The governing criteria for such an award is a
finding that the case presents such an exceptional or unusual
disability picture with such related factors as marked
inference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards.
The Court has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R. §
3.321(b)(1) in the first instance, however, the Board is not
precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations. Floyd v. Brown,
9 Vet. App. 88 (1996). The Court has further held that the
Board must address referral under 38 C.F.R. § 3.321(b)(1)
only where circumstances are presented which the Director of
VA's Compensation and Pension Service might consider
exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,
227 (1995). The Board also finds that the evidence does not
show exceptional or unusual circumstances, which might
warrant referral for consideration of extraschedular
compensation. The evidence does not show that the veteran's
diabetes mellitus has resulted in hospitalization or
symptomatology that is not provided for under in the
Schedule. Thus, the Board finds no basis for further action
on this question. VAOPGCPREC. 6-96 (1996).
ORDER
Entitlement to an initial evaluation in excess of 20 percent
for diabetes mellitus, is denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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